Legal representation of unaccompanied children

Poland

Country Report: Legal representation of unaccompanied children Last updated: 16/04/21

Author

Independent

The Law on Protection provides for the appointment of a legal representative to an unaccompanied child – special guardian (kurator).[1] There are no exceptions; each child has to have a legal representative and all unaccompanied children get one in practice. The Head of the Office for Foreigners or the SG immediately lodges the request to the district custodial court. The court appoints the legal representative. Under the law, the deadline for appointing the guardian is 3 days. There is no information on compliance with this rule in practice. One guardian is appointed for the following proceedings: international protection, Dublin, social assistance, voluntary return.

There is no special requirement in the Law on Protection for being eligible as a representative of an unaccompanied child for an asylum procedure: the representative should be an adult and have legal capacity. Under the law, only the person who undertakes procedural acts in the proceedings in granting international protection to an unaccompanied minor should fulfill certain conditions.[2] There is no remuneration for being a legal representative. In practice in the last years there were problems arising from the insufficient numbers of trained legal representatives for unaccompanied children. NGO personnel and students of legal clinics at universities are appointed as guardians. The legal representative should be present during the interview, together with a psychologist, and may ask questions and make comments.[3]

The Border Guard reports that since December 2017 they use a list of NGO workers who declared their willingness to be a representative of a child.[4] However, as the Border Guard confirms, due to the lack of funding, some NGOs withdrew their representatives from the list. As of the end of 2020, there were a total of 11 legal representatives on the list, for a total number of 113 unaccompanied children. Their presence on that list is not binding, which means they are not obliged to become a representative.[5]

In 2018 the Commissioner for the Rights of the Child called on the Ministry of Justice to introduce a special type of legal representation of unaccompanied foreign children in Poland. In the opinion of the Commissioner that would allow a comprehensive and stable representation of a foreign child on the Polish territory, bearing in mind their best interest. The Commissioner criticised the fact that guardians were appointed for concrete proceedings or group of proceedings and they did not have a closer relation with a child, which impeded decision-making and assessing the children’s best interest in other fields (such as education, medical care, etc.).[6]

In the shadow report to UNICEF from 2020, NGOs stress that some guardians do not have any personal contact with the unaccompanied minor they represent and because of such a practice, the child does not have much information on their legal situation. Children do not have access to any information that would be adjusted to their age (leaflets, websites). Also, guardians are not supported by interpreters, which makes the communication ever more difficult.[7]

Currently unaccompanied children are placed in various intervention facilities in Poland, instead of in a central institution. After the court ruling appointing the representative, they can be placed in foster care facilities or foster families. In 2018, as in the past years, unaccompanied minors were mostly placed in foster care facilities in Ketrzyn (12 persons) – due the proximity to the detention centre in Ketrzyn, from which they are released because of age – or in Warsaw (4 persons). In other places, only one unaccompanied child was placed per location.[8] There is no information on whether the personnel speak foreign languages there, this is not one of the criteria.[9]  In 2020, unaccompanied minors were accommodated mainly in Kętrzyn, Warsaw, Siematycze, Janów Podlaski, and Białystok.[10]

When the asylum procedure is finished with a negative decision, the minor remains in the same foster family or institution.

In 2020 there were 113 unaccompanied children (up from 105 in 2019) applying for international protection in Poland.[11] According to the Office for Foreigners the vast majority of procedures are discontinued because of implicit withdrawal of the application (the minors leave the centres and do not return), in case of some nationalities (e.g. Vietnamese) the percentage of discontinued applications is 100%.[12]

 

 

[1] Article 61 Law on Protection.

[2] Article 66 Law on Protection.

[3] Article 65(3) and (4) Law on Protection.

[4]  Information provided by the Border Guard, 11 January 2018.

[5]  Information provided by the Border Guard, 17 January 2020.

[6]  The Commissioner for the Rights of the Child, letter to the Ministry of Justice, 2 July 2018, available (in Polish) at: http://bit.ly/2SemlZK. These letters are no longer available online once the Commissioner for the Rights of the Child changed and the website is being rebuild.

[7] NGOs alternative report to the government report on implementation of the Convention of the Rights of the Child, submitted to UNICEF, August 2020, available (PL) at: https://bit.ly/3s3hZXK.

[8] Information provided by the Office for Foreigners, 15 January 2019.

[9] Information provided by the Office for Foreigners, 27 August 2015.

[10] Information provided by the Office for Foreigners, 26 January 2021.

[11] Information provided by the Office for Foreigners, 26 January 2021.

[12] Information provided by the Office for Foreigners, 15 January 2019.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation